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As The Senate Retreats To Amend The Constitution By Orji Uzor Kalu
Constitutional amendment is an indispensable process that must be embraced by any nation that seriously desires the advancement and growth of her democracy and way of life. Experience from around the world has shown that most national constitutions came into being during periods when nations were in a hurry to depart from some failed system of governance or on an urgent hunt for a new political order that best represents the society’s will of that moment. In the United States, the first Continental Congress that gave America her written constitution was in much hurry to emancipate America from an irritatingly undemocratic royal rule coming from a Britain they perceived as a declining power. At the time, the desire for America’s independence was exigent and titillating, and the constitution Americans enacted to guide their path to the new order was done in so much hurry that too many fundamental values like abolition of slavery and equality before the law were either missing or clumsily drafted. Even bad grammar and some mischief were legion. But in time, Americans were to prove that they could do better. Constitutional amendment was the answer.
In Nigeria, the 1999 constitution presently in operation was not that badly drafted by the original framers but as finally enacted, it contained or was absent provisions the departing military forced upon it by sheer decree, thus subverting much of the popular will of Nigerians as represented by the Constituent Assembly. Yet, this is understandable because Nigeria, much like America before it, was also in much haste to rid itself of military rule, and therefore was bound to make some errors in the enacting of her constitution. Americans corrected their own errors through several amendments that began from the 1st amendment to the odd twenty-seven they have as of today. The amendments were matters of course because they simply encapsulated the popular will sifted from vibrant public debates, judicial pronouncements, or creative legislation issuing from the United States congress. In Nigeria, as the senate retreats to amend our constitution, it must be encouraged to look first to the rich body of sound postulations coming from Nigerians of differing hues – both the lay public and the fine constitutional experts that bestride our nation. But more importantly, the senate should very well look to the many rulings from Nigeria’s Supreme Court in which constitutional questions were implicated and settled in many ramifications. Again, in the United States, it was the Supreme Court that pointed the way to constitutional reforms on matters such as equal protection of the laws by striking down segregation or state-tolerated discrimination. The US congress followed suite by enacting the 14th Amendment. And when the Court struck down private discrimination against blacks, the congress codified the ruling by enacting the 13th Amendment. The Miranda Rights read to American residents upon arrest was as a result of court rulings which were later to give birth to the 5th and 6th Amendments; and judicial rulings were the forerunner of the 11th Amendment on the devolution of police powers from the federal government to the states. So, you can say that some controversy and judicial activism were first present before many amendments proceeded in America.
In Nigeria, much controversy has arisen over our process for qualification for election to public office to the point that many of the core issues now fit for constitutional amendment have already been settled by our high courts around the country, becoming final and thus law when reviewed by the Supreme Court. One example is the issue of vacancy of the office of the Vice President when he ceases to be a member of the political party that saw him to office. Another is the authority of political parties to substitute their candidates, and so on. These are all constitutional matters found in several sections of our constitution in its present form but nonetheless courting controversies because of absence of sound considerations to their nuances when the constitution was being framed. So, now that our very own constitutional court – the Supreme Court has issued clear rulings for or against the opposite propositions on some of these questions, we now have a judicial direction to where the nation should go, just like the Americans before us looked to their Supreme Court rulings for guidance on the nature and reach of their own many amendments. More specifically and to recap, the senate needs to tinker with provisions on elections, election petitions, fair treatment of candidates by their political parties, the effect on tenure of annulled elections, and so on. The judicial roadmap is clear enough and in the public domain and therefore they bear no repeating here. Where the issue is considered unfit or verbose for constitution-making, then some ancillary and simultaneous federal legislation may prove to be the alternative.
The next hot-button constitutional issue is our system of local government administration, especially matters relating to the discretionary powers of the governor to regulate their finances as he deems fit. We have seen situations where the federal government was bitterly pitted against the states on issues of withholdings and the frustrations citizens continue to express in this regard. On the other hand, we have also seen much complaint by vocal local government chairpersons on the issue of unfair withholdings of greater portions of their ‘statutory’ allocation by some governors. So, in as much as corruption is to blame for the lack of appreciable impact of the allocations going to LGAs, many LGAs lagged simply because their governors cut too deeply into their statutory allocations to a level that left nothing after recurrent expenditures to pay for any sustainable capital item. And to make matters worse, there is no ameliorative law that compels the governors to account for what they deducted from the LGA allocations, thus making it inherently immoral and against the tenets of public policy underpinning our federal system. It rankles that under the present scheme, any governor is free to unlawfully deduct from the allocation of one LGA and spend the money as he wishes, including even taking it wholesale to another LGA or other unrelated project that he just fancies. This is not consistent with pure federalism, as it is only in Nigeria, and not in India or the United States, that a state governor is able to yank funds statutorily allocated to another tier. In the US, the governor of a state has no business with county (LGA) finances, and even goes as far as making grants from state coffers to counties. It cannot be the other way around without infringing on the core elements of fiscal federalism in which an effective local government system is expected to function properly. There is no basis in reason to believe that the governor of a state is suddenly possessing of superior discretion in terms of how much of its allocation an LGA is entitled to, especially when the governor is not the one that is domiciled in and directly administers the local area.
Contrast the foregoing with a situation where the President suddenly asserts some pseudo-legal authority to impound statutory allocations bound for the states, and retains all but barely the much required for states’ recurrent expenditures. Nigeria will boil, and the world would laugh at us. Therefore, just as the President is assumed not to be imbued with better fiscal integrity or discretion than a governor, so also we must operate under the premise that the same is true between a governor and an LGA chair. And to press this point home, though as a drift, is our tendency to hold the local government system in contempt merely because of the operative word ‘local’, which is a word of art most Nigerians associate with all kinds of negativities and is even considered a pejorative or slur. Call any Nigerian local and see his red-faced reaction. The British did not call the system of local government they operated here before independence ‘county’ for nothing and the Americans that operate the best federal system known to man retained the same characterization. In both climes, where English is the first language, they knew well enough to figure that the word ‘local’ is often misconstrued to represent something demeaning or less than respectful, and thus they were careful to prefer ‘county’ – a synonym that evokes modernity and suburbia, and has come to be seen as a semantic differentiation from a municipality or mayoralty. The lesson therefore, is that proper constitution-making requires us to mind our language.
Additionally and most importantly, it is time for Nigeria to refrain from our odd and duplicitous tradition of affirmative action, known in our parlance as ‘federal character’. Everywhere you turn to in the Nigerian constitution, you will find references to our admirable commitment to ‘federal character’, often interpreted to mean the nation’s desire to balance power and opportunities amongst the majority tribes on the one hand, and then between them and the minorities on the other; or considerations to equality of the six geopolitical zones, the states, and our two major religions. Much as it is preposterous to suggest that we will ever have a perfect adherence to federal character, there are some glaring imbalances that must be urgently addressed if we are serious about Nigerian unity and prosperity. One that the senate must embrace as expedient is the popular desire by Nigerians (not just people of the South East) to create one more state in the South East. I say popular because the Mantu panel has already collected views from around the country demonstrating that an additional state for the South East is amongst the proposals that are expected to easily pass muster. Therefore, we, as a people committed to the ideals of federal character, fairness and unity of the nation should make bonafide efforts to avoid playing mean-spirited politics with this and bring closure to the feelings of alienation rampant in the South East on account of this imbalance. If something must give to get this done, then two more states could be created in the South East with one more for each of the other five geopolitical zones, but not more.
Therefore, as the senate goes into retreat to fix Nigeria’s constitution, our senators need to prove the statesmen they are by giving Nigerians the sort of amendments that will be in touch with the popular will of Nigerian citizens, in comportment with well-reasoned Supreme Court rulings, and above all, emulates the fundamental elements of federalism that are known to have worked for more experienced nations in like circumstances.
Orji Uzor Kalu is former Governor of Abia State
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